In 1953, nearly 27 percent of all private sector workers belonged to a union. Today, that number is fewer than 8 percent. The Employee Free Choice Act (EFCA), reintroduced by both houses of Congress on March 10, 2009, could, if passed in its current form, increase union representation in the private sector to levels unseen since organized labor’s heyday decades ago.
Although the bill faces a stiff fight – even with strong support from the Obama administration – it is important for employers to understand the challenges posed by the EFCA and to consider new, proactive approaches to “union avoidance.”
Key Features of the EFCA
1. Card Checks
Currently, when a union demands recognition, the employer may insist that its employees have the opportunity to vote on the question of representation. Prior to the vote, the employer has the opportunity to communicate with its employees, offering reasons why union representation may not be in the employees’ best interest. Many employees who originally supported union representation, change their mind by election day when presented with the facts. Under the EFCA, however, if a union provides evidence to the National Labor Relations Board (NLRB) that a majority of employees in an appropriate bargaining unit have signed authorization cards designating a union as its representative (a so-called “card check”), the NLRB would certify the union as the employees’ exclusive representative.
2. First Collective Bargaining Agreement Negotiations
Under current law, the only rule for negotiating a first collective bargaining agreement (CBA) with a newly formed union is the obligation to bargain in good faith. Even where both the employer and union are fully committed to the process, negotiations often take many months. The EFCA, however, sets up a specific timeline for reaching a first CBA. If the employer and the union are unable to agree upon a first CBA within 90 days, and are then unable to reach an agreement after 30 days of mediation, the negotiations will be sent to binding arbitration. This means that an arbitration panel can determine terms and conditions of employment to which the employer will be bound. The resulting “agreement” would be binding for at least two years.
Employer Response – Proactive and Preemptive
- Regularly consider any vulnerability to unionization such as weaknesses in the area of wages, benefits, working conditions and grievance procedures before a union attempts to organize.
- Train supervisors and managers to be on the lookout for signs of union organizing activity.
- Promote a union-free philosophy that stresses the importance of direct dealings between employer and employees, and that the company’s union-free status is critical to its success.
- Prepare management and employees for card check activities before a union begins the process. Inform employees that signing a card could be the equivalent of voting for a union under the EFCA.
The time to start preparing for the challenges presented by the EFCA is now. The Prince Lobel attorneys who specialize in employment law are available now to assist you in formulating an appropriate response for your company.